Statelessness vs. State
The human rights of stateless persons should and must be protected not only on international but on domestic level as well. Failure to protect human rights of stateless persons raises from unwillingness from the government to do so, think it expedient to ignore the human rights of “invisible” stateless residents in its territory. This must be changed. We should not only be concern globally about the human rights violation of stateless persons but try to take all necessary steps to eliminate statelessness within our own territory, here, in the United States.
As I have mentioned before the law must be balanced. Even though we do not have any remedies or laws protecting stateless persons in the United States, there are several international declarations and conventions in regards to human rights protection, those laws are binding in our country, and does not discriminate on citizenship status or limbo status in case of statelessness. Even though, the United States is not a party of the UN 1954 Convention Relating to the Status of Stateless Persons and the UN 1961 Convention Related to the Reduction of Statelessness, we did sign the Universal Declaration of Human Rights, and as democratic society should follow the principles of that Declaration when we take statelessness into account. Besides UDHR, we have Inter-American System. That system is primarily based around two treaties-the American Declaration on the Rights and Duties of Man and the American Convention on Human Rights which is administered by the Organization of American States. Any violation in regards to human rights treatment, e.g. forceable exile, confinement in one place without the possibility to excersice the freedom of movement and travel can be petitioned to the Inter-American Commission on Human Rights, and the Inter-American Court of Human Rights. The American Convention on Human Rights is a binding legal document which was adopted in 1969 and went into force in 1978. That Convention particularly outlines the human rights of all individuals and does not discriminate based on sex, religion, political opinion, citizenship status or statelessness limbo. It specifically states the freedom from exile (my exile in US territory still ongoing), the right to asylum (my asylum was denied in 1996 due to unfair trial), and the prohibition of the collective expulsion of aliens. In this case it means that estimated 4,000 stateless persons living in the United States without being recognized and in limbo status cannot be deported to nowhere as there are no nation in the world that recognizes them, and the host nation does not provide any remedies or legal status to those people. But by living in the United States we should be protected as any other citizens as we follow the same regulations like anyone else, work, pay taxes. Stateless persons cannot be forced deported or self-deported without the diplomatic assurances from other “safe” nation who is willing to provide them protection and legal assistance.
I understand that if I found myself in Germany or Switzerland it would be hard to convince the US Government to take back stateless person with 16 years residency in the US back. But I am not in Germany or Switzerland, I am on US soil, the US territory in South Pacific, American Samoa where President of the United States is the head of state. For the past 10 month I am fighting for my human rights and the possibility to return back home to the mainland of the United States. The US DHS keep saying that I am outside of the US immigration system which in my opinion is not true at all. As US territory, American Samoa is under the jurisidiction of the United States, and federal immigration law does apply to this territory in cases like asylum, refugee, etc., and also included in USCIS paragraph 215.1 in regards to control of aliens departing the United States. And again, American Samoa is the US territory. If I am having difficulties to get back to the mainland of the US from the US territory, imagine if I was in Austria or Italy. What could happen in this case? Well, first of all, as a stateless person who lived in the US for 16 years without status it would be difficult and almost impossible to convince EU nations to grant you asylum or refugee status coming from the “safe” country like USA. On what ground does EU grant asylum to stateless person coming from the United States? Religious discrimination or discrimonation based on my sexual orientation, my nationality, the race? Or maybe because the US violates the right of stateless persons? We can go on and on but for EU it won’t count. What will happen in this case? If you get a little bit chance to be approved and legalized in EU as a stateless, bingo, you are protected according to the UN 1954 Convention, and again, if you get lucky. But in most cases EU will have no choice but deport you back to the country of your last habitual residence, the country you came from, which is the US. So, basically you will be living in the sky, traveling between Europe and the US, and neither US will allow your entry nor Europe, and your permanent residency becomes Boeing-757, let’s say, you cannot get in and you cannot get out unless some international organizations would get involved and condemn the countries for violating human rights of stateless person. But who will be held accountable in this case, EU or US? Of course, the US, as it was the only country where stateless person spent most of his life living and working as any other citizen, where he has established his life, connections, friends, carrier and everything he carved for over a decade. He has ties in the US, something that he does not have in EU.
Back to the Inter-American Convention. This Convention adopted a protocol in the area of Economic, Social and Cultural Rights (the so called protocol of San Salvador adopted in 1988 and went into force in 1999). This protocol includes the right to a healthy environment. The environment I found myself in, here in tropical island, is not healthy at all for my own health. The humidity, hot and tropical climate is unbearable for me, and I am a temperature-sensitive person. I am not an island person at all. Taking this into account it does constitute the violation of 1988 Protocol by the US as I am in the US territory and is a long-term resident of the United States. Forced exile, forced confinement, with all rights taken away, and the mental and physical torture I am going through here is also in violation of Inter-American Convention to Prevent and Punish Torture that was adopted in 1985.
How many stateless persons in the United States found themselves in the same situation like myself, the same madness and nightmarish limbo? Am I the only one? Are there others who did not speak yet? From estimated 4,000 stateless persons living isolated in the United States, I can speak on behalf of all of them, because we are the group of stateless persons whose rights are violated, we are not recognized as legal residents or citizens of this country, we cannot move freely, we have to report to immigration authorities indefinetly that can last forever, and we cannot look for a job as we wish because we must have special permission from ICE agents to allow us to apply for work permit, and if you don’t have work permit, your social security number is useless, and you will never be able to obtain neither Government issued ID’s or Driver Licenses. You are the hostage of the broken immigration system.
I was talking about my rights as a stateless person, but as I mentioned before we have estimated 4,000 stateless persons in the US, and more hiding in shadows. So, basically it is human rights versus collective rights, meaning the human rights of one stateless person versus human rights of all stateless people. Statelessness as collective rights, but also stateless persons have the same human rights as a human being. Taking statelessness as collective human rights is to determine who is to exercise the rights? Is it state? The issue here of who holds the duty to respect, protect, and fulfill the human rights of stateless people is equally difficult. For example, if the right-holder is the stateless people, than the duty-holder might be the State and if State violates human rights of stateless people the claim against the State should be brought to Inter-American Court on Human Rights. If the State itself is the right-holder, or if the State is empowered to exercise the right on behalf of stateless people, on whom does the corresponding duty fall? UNHCR? International Court of Justice? or Inter-American Court on Human Rights?
If I, as a stateless person living in the US wish to exercise my right to freedom of movement according to Universal Declaration of Human Rights, the State is required to refrain from interfering with my choice. But in order to respect my individual right to freedom of movement, the State is also required to refrain from active violation of the Universal Declaration of Human Rights and the principles of Inter-American Commission of Human Rights or placing discriminatory restrictions on stateless persons, and must either adjust domestic immigration policy, or join UN 1954 and UN 1961 Conventions - in other words, to protect stateless people, which is crucial for liberal democracy to function properly.
Stateless,
Mikhail Sebastian
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